Legal Protection of Privacy

Legal Protection of Privacy

Since the introduction of the Human Rights Act 1998 which incorporated the European Convention on Human Rights ("ECHR") into UK law and which, by Article 8, guarantees a right to privacy, individuals can now seek to enforce that right through the courts. Individuals and organisations can seek an injunction to prevent broadcasters from unjustifiably infringing their privacy or, after broadcast, may sue for damages.

Right to Privacy -v- Right to Freedom of Expression

When deciding whether or not there has been or is likely to be an infringement of privacy and, if so, whether or not it is justified, the court, taking into consideration all the facts and circumstances of a particular case, will seek to balance the individual's right to privacy, under Article 8, with the programme maker's and broadcaster's right to freedom of expression under Article 10 of the ECHR.

Public Interest & Compliance with the Code

The law states that wherever a court is considering granting an injunction preventing broadcast of a television programme, the court must have particular regard to the extent to which it is or would be in the public interest for the material to be published and also the extent to which the broadcaster has complied with 'any relevant privacy code', in this case the Ofcom Broadcasting Code. Accordingly, whether or not publication is justified will generally turn on whether or not there is an overriding public interest, which is consistent with the privacy provisions of the Code.

A detailed discussion of the law of privacy is outside the scope of this Handbook but producers should read Ofcom Code Section on 'Privacy' of this Handbook, which contains a summary of the regulatory provisions relating to privacy and a detailed discussion of how to ensure that programmes do not unjustly infringe the privacy rights of others. Compliance with the privacy rules and practices contained within the Code will assist in ensuring that a programme complies with the law.

Protection from Harassment Act 1997

Whilst this piece of legislation was principally intended to deal with stalking, it can have implications for journalists and their activities. The Act creates both civil and criminal liabilities for journalists.

It is a criminal offence to engage in a course of conduct which one knows or should know amounts to harassment of the subject. The maximum penalty is 6 months imprisonment or a fine. There is no specific defence for journalists. The only relevant defences are the prevention or detection of crime which are unlikely to apply to journalists; or that in the circumstances the conduct was reasonable.

The Protection from Harassment Act 1997 was amended (by the Protection of Freedoms Act 2012). Section 2A makes it a separate offence for a person to pursue a course of conduct which amounts both to harassment in breach of s1(1) of the Act and amounts to 'stalking'. The Act contains a somewhat circular definition of "stalking" and includes examples of activities associated with stalking e.g. following a person, contacting, or attempting to contact, a person by any means, watching or spying on a person. The maximum penalty for this offence is 51 weeks imprisonment or a fine.

Section 4A creates a further offence involving stalking where there is fear of violence or serious alarm or distress - a person commits an offence where they pursue a course of conduct which amounts to 'stalking' and which they know will cause, and does cause the victim either to fear the use of violence on at least two occasions, or causes the victim serious alarm or distress, which has a substantial adverse effect on their usual day to day activities. The maximum penalty for this offence is 5 years imprisonment or a fine. Again, there are a few specific defences in the Act including that the conduct was purused for the purpose of preventing or detecting crime.

In addition, through a civil action, the subject of the harassment can:

Seek damages from the harasser for any anxiety caused and for any resulting financial loss;

Apply for an injunction after only one act of harassment if they can show that future harassment is likely; and

Apply to the Court for an arrest warrant to be issued if the harasser breaches any court order.

The types of activity which could be problematic are:

long lens photography;

doorstepping;

interviewing/speaking to friends, business associates and family about the subject, without the consent of the subject;

contacting a subject after he/she has refused to comment;

continuing to film a subject after they have asked for filming to stop.

Clearly, compliance with the provisions of the Code on fairness and privacy would assist in any defence. See 'Fairness' and 'Privacy' respectively.

Computer Misuse Act 1990

Accessing a computer without proper authorisation ("Computer Hacking") is a criminal offence.

It is an offence under the Act to cause a computer to perform any function with intent to secure unauthorised access to any program or data held in the computer. The Act itself does not contain a public interest defence.

The Regulation of Investigatory Powers Act 2000 ("RIPA")

RIPA makes it a criminal offence to intentionally and unlawfully intercept communication by post, phone or other telecommunications systems. Phone hacking and accessing someone else's voicemail messages without consent is caught by this Act. The Act itself does not contain a public interest defence.

RIPA does not affect journalists recording telephone conversations to which they are a party either for research purposes or with a view to broadcast but see 'Privacy'.

Wireless Telegraphy Act 2006

This Act makes it an offence for a person without authority to use wireless telegraphy apparatus with the intention of obtaining information as to the contents, sender or addressee of a message (whether sent by means of wireless telegraphy or not) and prohibits the disclosure of such information.